| The jury in the
case of the State of Idaho vs. H.J. Smith, after being out about 14
hours returned a verdict of not guilty and Smith is free. The
verdict was brought in about 7:15 this morning and the jury went to the
jury room about 5:00 o'clock last night.
The case has been followed
with exceptional interest and the court room was crowded with spectators
all of the time during the trial. The case was a close one and
puzzling in some ways., but the evident good appearance and the good
reputation which the defendant bears were matters in his favor.
The defense set up self defense and endeavored to establish the good
character of the defendant, and a quarrelsome disposition on the part of
the deceased which was aggravated by the fact that he was a drinking
Smith's trial was set for
Monday of this week last on account of the fact that the Marcus boys,
brothers of the deceased, were not present that State asked that the
case be continued until Tuesday. The brothers were in Minneapolis
when last heard from and Prosecutor Hattabaugh received information that
they could not arrive until Friday.
The State was represented by
M.R. Hattabaugh and B. Auger, who was entered on Monday to assist the
prosecution. Tuesday forenoon and a part of the afternoon was used
in getting a jury and every name in the box was drawn out before a jury
was agreed upon. The jurymen finally selected to hear the case
were William G. Hanson, T.S. McCune, Robt. Marnett, Jas. L. McHugh, Fred
Collison, Peter Aschenbrenner, John F. Oliver, E.W. Barnum, Chas Sallec,
J.H. Johnson, M,.I. Cross and J.D. Stanbery.
After the information had
been read to the jury and defendant's plea stated, all of the witnesses
present were sworn and excluded from the court room excepting Dr. J.B.
Morris, Dr. W.F. Orr and C.J. Vassar who were permitted to remain in the
court room. Statement of the case was hereupon made by M.R.
Hattabaugh and following him W.N. Scales made the statement for the
defense and the state proceeded to introduce its testimony.
The state put seven witnesses
on the stand to establish the guilt of the defendent. Dr. Orr of
Cottonwood testified as to being called to the car on the siding near
the rock crusher to minister to the man killed and as to the nature of
the wounds. Dr. Morris of Lewiston testified as to meeting the car
at Lewiston which brought Marcus to that place for medical attention and
also as to accompanying Marcus to St. Joseph's hospital where he died.
John Hanson, the first man
put on the stand by the state, was the foreman of the crew of which Joe
Marcus and J.H. Smith, the principals in the affairs were members.
Hanson slept in a car which was next to the one in which the shooting
took place and testified as to being called to the car on the night of -
- - - - -unreadable- - - for Dr. Orr at Cottonwood.
Testimony of Principal
Witnesses. The men who occupied the car in which Joe Marcus was
killed were W.A. Melton, Wm. Rudseld, J.H. Smith, Jim Smith, Barney and
Warner Marcus, brothers of deceased; and Joe Siegel. Of these the
Marcus brothers were unable to be present at the trial of the case,
having to come from Minneapolis their home, and the state therefore had
to rely on the testimony of Melton, Haybert Thine and Wm. Rudseld as its
Wm. Rudseld, a Swede, was
sleeping in the end of the car in which the Marcus brothers had their
banks according to his testimony, and was awakened about the time of Joe
Marcus returned to the car from Cottonwood. He said that Marcus made
some noise while preparing the fire for morning and that he heard
Smith tell him to make less noise. Marcus made some answer to
Smith and then the witness stated that he heard Smith ask if he, Marcus,
was looking for trouble to which Joe answered that he was not. He
then testified that Smith got out of his bunk and that Joe Siegel
followed him. Marcus then backed between the bunks holding the
shovel in his hand and Siegel took the shovel away from him, according
to the witness, whereupon he heard Marcus say, "you are not going
to shoot me are you Jack?" According to the witness Smith
then backed into the center of the car and Joe went up and put his hands
on the defendant's shoulders and then he heard three shots.
The testimony of W.A. Melton,
another occupant of the car practically substantiated the testimony of
Rudseld and he was awakened by Smith and Joe Marcus talking and then the
acts followed which ended in the shooting.
The testimony of Hagbert Thine also substantiated in effect the
circumstances brought out by Melton and Rudseld, and upon cross
examination it was endeavored to show by Thine that Joe Marcus was
quarrelsome and that he was looking for trouble among the crew.
Thine stuck to the statement that he had never had any trouble with Joe
though he admitted that the deceased was somewhat quarrel some, and that
he drank. John Eimers was put on the stand and testified as to
making the arrest. The state rested and the defense put in its
Evidence of Defense
recalled John Hanson, W.A. Melton, and Hagbert Thine who were questioned
with reference to whether Joe Marcus was quarrelsome, whether he drank and
other particulars of this nature and also with reference to a knife which
was alleged to have been found on the floor of the car the morning after
the shooting by Jim Smith.
Jim Smith, who is deaf in his left ear, and was sleeping on his good ear,
according to his testimony, when awakened by the trouble between Smith and
Marcus. He stated that he saw the scuffle from the bunk and that
Marcus threw his left arm around Smith's neck, and that he saw Smith reach
to his hip pocket for his gun with his right hand and then he heard the
three shots. The men had their backs toward him, the witness
testified and he said he did not see the gun nor did he see the knife in
Marcus' hand. He told of finding the knife in the car the next
morning near a clothes locker which was not far away from where the
scuffle ----unreadable--- preceded the shooting occurred and that he gave
it to Siegel.
Joe Siegel testified as to having known the defendant from time to time,
having worked with him before coming to Idaho and testified as to his
being of a good character, and never touching liquor nor gambling and that
he was not of quarrelsome disposition. He then testified as to the
difficulty which occurred, saying that he was sleeping in a bunk near
Smith when Joe came into the car and started to make a great deal of
noise. He said that Joe first started in by daring his brother
Barney to come out of the bunk in which he was sleeping using strong
language and telling what he would do and that Barney tried to get him to
go to bed. Witness testified that Marcus then tipped some things
over in the car and started over to the stove and made more noise when
Melton Smith and he told Joe to go to bed. That Marcus then called
Smith a vile name and started towards the bunk in which Smith was sleeping
with the shovel. Siegel stated that Smith then got out of the bunk
and that Marcus backed down towards the other end of the car and that he
got out of bed and got between the two men, holding Marcus and taking the
shovel away from him and that Joe then broke away from him and threw his
down in the car, jumping over his body and throwing his arm around Smith
and that the shots followed shortly thereafter.
Put on Stand
The defendant testified that he was a bridge carpenter by occupation and
formerly engaged in farming in Missouri about twelve years ago and has
worked on the Burlington, Santa Fe and O.W.R. & N. railroads before
coming up on the prairie.
With reference to the trouble in the car he stated that he first heard Joe
Marcus talking outside the car when he returned from Cottonwood and that
he had gone to sleep and was again awakened by Marcus coming into the
car. He then testified as to Marcus having an altercation with his
brother Barney, and calling him a vile name and daring his to come out of
the bunk. That the deceased then went over to the water keg and made
a great deal of noise tipping things over and from there went to the stove
and started to put some coal in the stove and spilled it on the floor of
the car. Smith then testified that he, Melton and Siegel then told
Joe to go to bed and that Joe answered, saying "come out of that bunk
you---- and I'll fix you" and that he then came towards the bunk with
the shovel. Smith said that he then got out of the bed and put on
his overalls and shoes and that Joe went back towards the other end of the
car and that he went towards him and told him to go to bed.
Smith next testified that Siegel came up and stepped between them and that
Sigel got the shovel out of Joe's hand and handed it to him and he threw
it against the side of the car. That Marcus then knocked Siegel
down, stating that he would get him and that he came up and threw his arm
around the defendant's neck and then he grabbed the hand which held the
knife but that Marcus jerked his hand away and that he then reached for
his gun and shot Marcus but he did not know how many times at that
time. Smith identified the knife as one he had seen in the
possession of Marcus prior to the trouble but stated that he did not know
at the time whether it was the knife Marcus held in his hand or not.
Smith stated that he got the gun in ---unreadable-- there was generally
considerable money in the car and that he wanted it for protection in case
of a hold up of the car having heard of such an event before and that he
always slept with the gun under his pillow.
The defense then rested and after a ten minutes recess the argument for
the state was opened by B. Auger, and W.N. Scales following for the defense.
M.R. Hattababugh closing the argument for the state. The
instructions were then read to the jury by the court and the jury went the
their room about five o'clock.